Farrah Ahmed: Strategy and Subterfuge? Assessing the ‘New’ Judicial Power

Part of our series on “Debating Judicial Power: Papers from the ALBA Summer Conference”.

In his new paper, Richard Ekins offers an ambitious and wide-ranging narrative of judicial power. He argues that a ‘new understanding’ of judicial power is ascendant. He seeks to explain, as well as dent, its appeal. In what follows I will comment on some of Ekins’ claims, as well as on how his aims might be achieved.

One of Ekins’ concerns is that, ‘[i]n applying the HRA, courts have often sought to anticipate and exploit the likely response of political authorities to their judgments’ and that ‘rights adjudication is … often characterised by an attempt to game the responses of the political authorities at the cost of the integrity of the adjudication itself’. Ekins claims that judges inappropriately give weight to strategic political considerations in their decision-making. Substantiating this type of claim raises interesting challenges. Judges do not generally acknowledge that their decisions are swayed by the types of political considerations that Ekins is concerned about: the ‘political weakness of the claimants’, or a desire to secure ‘political victory’. Ekins offers direct textual evidence, as in Lord Neuberger’s judgment in Nicklinson. He also invites us to infer the influence of strategic political considerations from judges’ strained interpretations, their failure to consider strong arguments made by counsel and the political pressures they are likely be under. But, given the ambition of Ekins’ claim, more may be needed.

The claim should be refined by answering familiar questions: are these judges consciously basing their judgements on illegitimate political considerations, or is their behaviour unconscious? When they offer legal justifications for what Ekins claims are politically-motivated decisions, do they seek to deceive their audience, or do they deceive themselves? Or are their legal justifications offered as fig leaves, ‘preserv[ing] the decencies, without actually fooling anyone’?

The claim could be tested using different methods. If indeed (as Ekins claims) the likely political response to a decision influences whether courts take the s.3 or s.4 route under the HRA, empirical studies of decisions might help to demonstrate this relationship of influence. If indeed judicial subterfuge is afoot in decision-making, interviews have been useful in revealing such subterfuge in the past, and could be useful in this context. And if indeed judicial decision-making is influenced by unconscious negative views about the executive and Parliament, the growing literature on how to test implicit attitudes – ‘positive and negative evaluations that occur outside of our conscious awareness and control’ – might help to design tests for such attitudes amongst judges.

In elaborating on the claim discussed so far, Ekins makes a different, but related one: that the current interpretation of the HRA ‘encourages strategic thinking’ and offers a strong ‘temptation for the court to secure the legal or political change it thinks warranted’. This claim is much more readily supported. It is much easier to show that a particular statutory scheme offers judges incentives to decide in a particular way than to show that judges are motivated or swayed by particular non-legal considerations.

Ekins’s aim in the paper is not merely to criticise the HRA and its ‘judicial transformation’. Both the HRA and the ECA gave judges new powers, and reconfigured their relationship with the executive and Parliament. While formally this reconfiguration was limited to the subject-matter of these enactments – human rights and the EU – it has had knock-on effects. Ekins suggests that in the wake of the HRA and ECA it is easier to question whether parliamentary sovereignty is so very inviolable, whether the rule of law requires more of judges than has traditionally been acknowledged, and whether there is a need to rethink the separation of powers. Thus Ekins argues that both enactments prompted judges to revise their understanding of the theoretical foundations of the British constitution. He provides us with examples of how their ‘new understanding’ is used to justify changes in judicial decision-making beyond the HRA and ECA context, including in common law judicial review and in statutory interpretation involving presumptions. He argues that the changes wrought by the HRA and ECA ought to have been understood as exceptional and circumscribed. They did not merit, he suggests, such unsettling of British constitutional foundations. The ‘new understanding’, he believes, should be resisted.

The momentum of this ‘new understanding’ is such that it will take much to walk it back. Scholars – not just judges – have cast the many legal changes associated with the HRA and the ECA as revolutionary and radical; and they have plotted these changes as points on a path of progress. Ekins considers whether Brexit, the repeal of the HRA and its replacement with a British Bill of Rights will rein in the ‘new understanding’. But to effect the profound reform of British legal culture that Ekins seeks, we would need to re-ignite two sets of conversations.

First, when judicial obedience would lead to terribly unjust decisions, many would agree that it is justified for judges to disobey the law. As Jeffrey Goldsworthy tells us, ‘[i]f we accept that there is no absolute moral prohibition of judicial subterfuge – that it may, in some circumstances, be morally justified – then it becomes a question of degree’. It is no accident that the most prominent instances of judicial subversion of the law in the paper relate to the HRA. For, if judicial disobedience is ever justified, we might expect that it would be justified where human rights are at stake. Many would think it excusable, or even justifiable, for a judge to engage in some covert disobedience to protect individuals from torture, detention or infringements of fundamental freedoms. Ekins acknowledges, but appears unmoved by, arguments for ‘principled disobedience’. To effect the changes that this paper aims at, these arguments must be squarely addressed in moral terms within the broader legal community (as they have been in academic scholarship). This is important because, as Ekins notes, courts are ‘sensitive to the responses of others, including judges in dissent, judges in subsequent cases, lawyers, and MPs and ministers.’ While many (including myself) think circumstances sometimes justify judicial disobedience, they might yet be convinced about the narrowness of these circumstances.

Second, in many circles, constitutional theory is viewed as a frivolous, if generally harmless, pursuit. Ekins’ account, meanwhile, emphatically demonstrates how constitutional theory bears on the nuts and bolts of lawmaking, legal practice and adjudication. And it follows from his account that any challenge to the ‘new understanding’ cannot rely only on complaints about deviation from settled legal doctrine; it also requires sophisticated conversations about the moral and conceptual foundations of the British constitution. By provoking these conversations, and in demonstrating the role of constitutional theory in legal debates about judicial power, this paper does the debate on judicial power a great service.

Farrah Ahmed is Associate Director (India) of the Asian Law Centre in the University of Melbourne.